Employment ban

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The employment ban is the legal prohibition in labor law to employ an employee with gainful employment and it releases the employee from his duty to work . In the case of an employment ban, the ability to work does not apply .

General

Employment bans apply primarily to the employer , but sometimes also to both parties to the employment relationship . Has an employer to an employee violates the prohibition to work, the employee can work performance refuse, without his entitlement to pay to lose. However, if the prohibition of employment is observed, the employee is only entitled to remuneration if this is provided for by law or a collective agreement . Employment bans primarily serve occupational health and safetythe employee. The law wants to relieve the pressure on the employee to decide whether he wants to show voluntary compulsory work or to take advantage of the legal protection by the mandatory order of an employment ban.

species

Employment bans can be found in Germany in the Youth Labor Protection Act (JArbSchG). So prohibits § 5 para. 1 JArbSchG the child labor , § 22 para. 1 JArbSchG dangerous work , § 23 para. 1 JArbSchG piecework or tempo-dependent work or § 24 para. 1 JArbSchG the work underground . In addition, the Mutterschutzgesetz (MuSchG) contains important employment bans ( maternity protection ). If the life or health of the mother or child is endangered by the continued employment, the mother-to-be may not be employed in accordance with Section 2 (3) MuSchG. In the last six weeks before the delivery , the mother-to-be may no longer be employed unless she expressly requests it ( Section 3 (1) MuSchG). In addition, depending on the type of employment, there are further employment bans in § § 4 to § 6 , § 10 Paragraph 3, § 13 Paragraph 1 No. 3 and § 16 MuSchG. Section 3 (2) MuSchG contains employment bans for a period of eight to twelve weeks after childbirth. During the period of the prohibition of employment, the maternity protection wage must be paid in accordance with § 18 MuSchG.

In the case of civil servants , soldiers and judges , one speaks of a service ban instead of an employment ban . For example, the participation of a female judge in the main hearing during the maternity protection period leads to an illegal appointment of a court due to an absolute ban on services, with the consequence of an absolute reason for a review ( Section 338 No. 1 StPO ). The absolute ban on services is mandatory law.

In Section 42 (1) IfSG, the Infection Protection Act (IfSG) prohibits employment for people suffering from certain infections who are not active or are not allowed to be employed in the production, treatment or placing on the market of food if they come into contact with them or should work in the kitchens of restaurants and other facilities with or for communal catering . Section 43 (1) IfSG therefore requires that people only exercise these activities for the first time and only be allowed to be engaged in these activities for the first time if, through a certificate from the health office ( health certificate ) no more than three months old or a doctor commissioned by the health office, the Safety has been proven.

Narcotics law

As a special consequence of a conviction under the Narcotics Act (BtMG), persons who have been convicted under the Narcotics Act, in accordance with § 25 para. 1 no. 4 JArbSchG for a period of five years from the legal force of conviction under 18 years are not concerned, not supervise, not instruct and not train and not be entrusted with such an activity. This does not include the time of imprisonment. Exempted from the prohibition of employment are the legal guardian .

See also

Individual evidence

  1. Harald Schliemann / Reiner Ascheid (eds.), Das Arbeitsrecht im BGB: Commentary , 2002, p. 265
  2. Harald Schliemann / Reiner Ascheid (eds.), Das Arbeitsrecht im BGB: Commentary , 2002, p. 265
  3. Federal Administrative Court, judgment of July 13, 2000, 2 C 30.99
  4. BGH, judgment of November 7, 2016, Az .: 2 StR 9/15
  5. ^ BAG, judgment of August 28, 1960, Az .: 1 AZR 202/59